There is a massive demand for unbundled – or limited scope – legal services, not just in family law but in almost all areas of legal practice, according to a report on unbundling.
Lawyers’ nervousness about possible professional negligence risks associated with unbundling meant a “structured framework within which to practice” was worthwhile to encourage their participation, the authors suggested.
The report, Mediate BC’s family unbundled legal services project, published recently with the support of the Law Society of British Columbia in Canada, was the result of an 18-month project designed to encourage more BC family lawyers to offer unbundled services.
It found “a huge unmet legal need for unbundled services including legal coaching”, not just in family law as there was “a growing recognition of unmet need in virtually all areas of legal practice”.
The people most likely to take up limited scope representation were able to afford to pay something but could not afford full representation. Many of them had a university education and were middle-income earners.
“This is a huge untapped market,” the report concluded, citing research from last year estimating conservatively that Canada’s annual opportunity to provide unbundled legal services ranged from $40m (£25m) to $200m.
The benefits of unbundling were widespread, it said. For the public it brought improved access to affordable legal services, price predictability and better outcomes. Among the benefits for lawyers were that “done well, it can be straightforward, lucrative and enjoyable”.
There were also potential advantages of unbundling for the courts and the justice system, such as better prepared litigants-in-person and familiarity with rules and procedures.
But the report acknowledged that “the public needs a full spectrum of legal service options, including pro bono, unbundled and full representation models” and agreed that unbundling was not always appropriate.
The report found that while unbundling had been permitted under BC professional conduct rules since 2008, “very few lawyers” were currently offering it.
The top worries of lawyers were a fear of complaints and claims from unbundled clients, and reputational concerns among judges and colleagues.
The authors accepted that a different business model was required for unbundling but said: “There is tremendous scope for unbundling to open the door to exploration of other business models for lawyers and law firms that are designed to meet the needs of clients, rather than the interests of its lawyers.”
On lawyers’ concerns, they pointed out that BC Law Society had no evidence to suggest a connection between unbundling and complaints.
They concluded that lawyers would be more likely to embrace unbundling if there was, among other things, “a structured framework within which to practice including template materials, best practices, intake and assessment guidelines and practical tips”.
In the UK, unbundling has received official support but discussion of it has been dogged by controversy over fears of a negligence risk through uncertainty about the extent of a solicitor’s liability.
In July the Solicitors Regulation Authority warned that litigation over unbundling was fuelling “a rapidly developing area of case law”.
Last year, Lord Justice Briggs linked unbundling to his plans for an online court. He acknowledged concerns, but said: “I consider that the time has come for facing up to [fears over negligence] and overcoming them to the extent that affordable early advice on the merits of a case becomes generally available, uncoupled from the disproportionate expense of a full retainer.”
However, earlier this year a survey suggested that many law firms were already offering unbundled advice services in family cases.